Come up and see me: Will there ever be an ICC hearing in a situation country?

29 March 2018 by Benjamin Duerr, The Hague (The Netherlands)

Judges at the International Criminal Court (ICC) have decided not to hold “in situ“ hearings in Eastern Congo where much of the court’s attention for the past fifteen years has been focused. As violence in the region is increasing, questions arise as to what impact the court has had and whether it will ever be able to hold hearings closer to the victims.

In Ituri province in Eastern Congo, villages are burning and people are fleeing again. In early March, a new outbreak of violence saw at least 33 people killed. Members of the Hema and the Lendu communities were reportedly fighting over land, increasing old tensions between the groups. More than 200,000 people have been forced to flee the region.

The last months begin to resemble the situation nearly two decades ago, when the conflict between the ethnic groups intensified and thousands were killed and hundreds of thousands fled. This relapse into violence is concerning and painful, particularly for the ICC. The court has been active in Ituri since 2003 and has tried crimes by members of both Hema- and Lendu-dominated militias. It has issued seven arrest warrants and so far convicted Thomas Lubanga, who led the Hema group “Union of Congolese Patriots“ (UPC), and Germain Katanga of the opposing ethnic group Ngiti or Lendu South. At the moment the trial against the UPC’s former deputy chief of staff, Bosco Ntaganda, is ongoing.

In his opening statement of the Lubanga trial, prosecutor Luis Moreno-Ocampo said: “The aim [of the trial] is to end impunity and contribute to the prevention of future crimes.“ A decade later it seems the ICC’s interventions have not had a profound effect on the dynamics of the conflict. It has not – apparently – deterred anyone from committing the crimes that are increasingly being seen today.

In fact, the situation in Ituri has deteriorated to such an extent that the judges in the Ntaganda case at this moment do not recommend going there. The defence had requested holding the closing statements “in situ“, closer to the victims. In their decision mid-March, the judges cited, among others, concerns about the current security situation and declined the request. The closing statements will be held in The Hague instead.

Despite several requests across various cases, the court has never held a hearing in any of the countries where the crimes took place. The situation in Congo and other countries where the ICC is active make it unlikely that it will hold hearings closer to the crime scenes and the victims any time soon.

Unlike the special or hybrid tribunals which are normally based in the countries, the ICC has increasingly intervened in conflicts which are ongoing. Courts and special chambers such as those for Sierra Leone, Cambodia and Kosovo were operating in situations of relative stability. The ICC, however, is active in countries like Mali, the Central African Republic, Libya and Afghanistan - countries where the conflicts not only continue, but where violence is even on the rise.

In addition, the tight budget states have set for the institution has placed constraints. Extra expenditures, such as moving temporarily to a court room in the situation country, seem not possible. ICC expert Phil Clark from the University of London, questioned whether holding “in situ“ hearings was even seriously considered by the judges. He commented that “this was an idea floated (mainly by the defence) rather than a concrete plan abandoned.“ For now, a trial closer to the victims the ICC serves remains unrealistic.

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